Recently, the Supreme Court characterized the clemency granted to former President Joseph Estrada as an “absolute pardon.” This means that, unless otherwise provided by the Constitution, the principal punishment of incarceration and all accessory penalties such as disqualification from public office have been erased - as if they were not imposed at all. The decision was not unanimous. Three magistrates, including the Chief Justice, dissented.

If this decision attains finality without any modification, this judgment might forever mar the reputation of the Supreme Court. Why? Because it exponentially raises the degree of impunity in our country for criminal acts committed by public officials.

Executive Pardon is an extraordinary presidential prerogative. Rarely can the exercise of such power of clemency be questioned. Legally, what it actually does is to disturb or halt the effects of justice lawfully administered by a separate branch of government, the Judiciary.

But if there is an ambiguity in the pardon’s effects, the power is not questioned but merely its application. Is the pardon absolute or conditional? Answering that question is important because, if the pardon were absolute, the greatest freedom is irrevocably granted, but if it were conditional, suffering the consequences of a crime is revivable. The vagueness of the wordings of the Estrada-pardon must be resolved in favor of the People of the Philippines which filed the case and successfully proved, beyond reasonable doubt, that the former public official, while in his high public office, committed a crime by amassing ill-gotten wealth in the amount of more than P50,000,000. The ambiguity must be resolved in favor of conditional pardon.

This must be so for, after all, the Constitution which provides the power of executive clemency emanates from the sovereign people. There can be no other greater vindication of the people’s violated right, which both the Executive and Judicial Department are duty-bound to uphold, than for a criminal to know that crime does not pay.

But for us, the citizenry, more than just being concerned about the legal entanglements of an executive clemency between the Executive and Judicial departments, it means that the accountability of the person pardoned is obliterated. And if one considers that the person involved was no less than the President of a country, it simply means that, subject to exceptions, said President is no longer answerable to the people for the despicable crime he was found guilty of.

This smacks of IMPUNITY because no less than an executive pardon - a privilege granted by the people to the Office of the President – has been used as the very instrument to frustrate the right of the people to hold accountable a person who holds the highest public position in the country.And now we have another branch of the government, the Judiciary personified by the Supreme Court, stating that even the very condition that enabled former President Estrada to be free of any accountability to the people for the crime of Plunder no longer exists precisely because the pardon granted to him was absolute, not conditional.

From the wordings of the pardon granted by then President Gloria Macapagal Arroyo, there is no question in my mind that it is a conditional, and not an absolute pardon.

The third “WHEREAS” clause (which explains why the executive pardon was given) is explicit. The document categorically states that “Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office.” Considering that PLUNDER was the offense involved in the pardon, this “Estrada-commitment” was the most important consideration for the grant of clemency. After the WHEREAS clauses, the instrument of pardon provided:

In view hereof and pursuant to the authority conferred upon me by the Constitution, I hereby grant executive clemency to Joseph Ejercito Estrada, convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. He is hereby restored to his civil and political rights.

The phrase “In view hereof” simply means because of what has been expressed in this instrument. And to reiterate, one of the explanations and intentions in the instrument of pardon was that Estrada will “no longer seek any elective position or office.” And surely Estrada knew such condition because he accepted the pardon and all its enunciations. The restoration of “his civil and political rights” was therefore delineated by one limitation known to Estrada - that he “publicly committed to no longer seek any elective position or office.” This consideration is, in legal effect, a resolutory condition on the grant of clemency.

In law, a resolutory condition is a kind of condition which effectively causes the right granted to cease to exist once that condition is broken. Thus, if I enter into a contract stating that you can live in my mansion for as long as you do not go abroad, you can live immediately in the mansion upon acceptance of the contract, but if you go to the US, even for a short visit, the contract is resolved or extinguished and you forfeit your right to live in the mansion. The right to be in the mansion will be taken away from you.

In the case of Estrada, he ran for public office. The resolutory condition happened. He committed the prohibited undertaking which was the consideration of the pardon. It did not even matter whether he was elected or not. The pardon lost its effect even before he took office as Mayor. Its cessation commenced when Estrada filed his application to “seek” elective office. The consequences of the criminal judgment of plunder against him as determined by the Sandiganbayan must be fully restored and implemented as if the pardon never existed.

Plunder is the highest and most evil crime a public official can commit. There can be no other more serious offense brazenly manifesting betrayal of the public trust. Correspondingly, the Presidency is the highest government office. The people elect the President trusting that he will serve honestly. There can be no other official more powerful than the President.

If the highest crime is committed by the highest official, the highest penalty must be meted out in its highest application. And if, in his favor, he is extended executive pardon, any resolution of its ambiguity must always be resolved in favor, not of the greatest grant of liberty, but of the least transmission of civil and political rights. For that is the pervading spirit of the Constitution - one of public accountability and not of impunity. It cannot simply be “business as usual.”